日志
Lesson 14: 法律定义：民法房屋法庭相关
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325D or 325(d): a shorthand reference to "CPLR 325(d)," the New York statute which allows a court to transfer a matter to a lower court. Pursuant to CPLR 325(d), the Supreme Court may transfer claims to the Civil Court which appear to have a value of no more than $25,000, but which were brought in Supreme Court claiming a greater amount. Once transferred, however, a potential verdict is not limited to the $25,000 maximum of the Civil Court.
纽约地方法规CPLR325D规定：在声称会有大于25000，但看起来只有25000以下的小额诉讼，将可以由高级法庭移交到市级法庭。转移到下级法庭之后，实际判决仍可能会高于此25000金额。
action: a civil judicial proceeding whereby one party prosecutes another for a wrong done or for protection of a right or prevention of a wrong; requires service of process on adversary party or potentially adversary party
adjournment: a temporary postponement of the proceedings of a case until a specified future time
adjudicate: to hear or try and determine judicially
adversary: an opponent. The defendant is the plaintiff's adversary
affiant: one who swears to an affidavit; deponent
affidavit: a sworn or affirmed statement made in writing and signed; if sworn, it is notarized
affidavit of service: a sworn statement made in writing certifying the delivery of copies of legal documents to the correct person or entity
affirmed: upheld, agreed with (e.g.,The Appellate Court affirmed the judgment of the Civil Court)
allegation: the assertion, declaration, or statement of a party to an action, made in a pleading, setting out what the party expects to prove
allege: to assert a fact in a pleading
allocution: a formal address by a trial judge to the parties on the record to find out if they understand the terms of a stipulation of settlement
answer: a paper filed in court and sent to the plaintiff by the defendant, admitting or denying the statements in the plaintiff's complaint, and briefly stating why the plaintiff's claims are incorrect and why the defendant is not responsible for the plaintiff's injury or loss
answer (Housing Court): a respondent’s first response to a petition. It may contain a general denial, any legal or equitable defenses, and any counterclaim.
appeal: in an appeal, either plaintiff or defendant (or sometimes both) asks a higher reviewing court to consider a lower court judge's decision. One may only appeal a judge's ruling, not an arbitrator's ruling.
appeal as of right: the ability to bring an appeal of an order or a judgment without seeking permission of the court
appear/ appearance: the participation in the proceedings by a party summoned in an action, either in person or through an attorney
appellant: the party who takes an appeal to a higher court
appellee: the party against whom an appeal is taken
arbitration: a process in which an impartial attorney trained in arbitration or a retired judge decides a dispute instead of the court; if the parties consent to arbitration, the arbitrator's decision is final; otherwise, a dissatisfied party may request a trial before the court
arbitrator: a disinterested person trained in arbitration who hears evidence concerning the dispute and makes an award based on the evidence
argument: a reason given in proof or rebuttal
attachment: the taking of property into legal custody by an enforcement officer
bill of particulars: factual detail submitted by a claimant after a request by the adverse party which details, clarifies or explains further the charges and/or facts alleged in a pleading
brief: a written or printed document prepared by the lawyers on each side of a dispute and submitted to the court in support of their arguments - a brief includes the points of law which the lawyer wished to establish, the arguments the lawyer uses, and the legal authorities on which the lawyer rests his/her conclusions
calendar: a schedule of matters to be heard in court
calendar call: the calling of matters requiring parties, or their attorneys, to appear and be heard. There is usually one at the beginning of each court day. Other calendar calls take place throughout the day.
caption: in a pleading, deposition or other paper connected with a case in court, it is the heading or introductory clause which shows the names of the parties, name of the court, number of the case on the docket or calendar, etc.
cashier: a court employee in the clerk’s office authorized to accept payment for various court services, including starting an HP case
cause of action: grounds on which a legal action may be brought (e.g., property damage, personal injury, goods sold and delivered, work labor and services)
certified copy: a document which contains a seal that establishes the document as genuine, as a true copy, so that it may be used as evidence at a trial or a hearing. A document may be certified by an official record keeper, a clerk of the court, or any other authorized person, for example, an attorney.
certificate of compliance: a requirement of the New York City Housing Maintenance Code which provides that when any violations of the Housing Maintenance Code have been corrected, they shall be certified at one time to the Department of Housing Preservation and Development (HPD). Such certification shall be in writing , under oath by the registered owner, a registered officer or director of a corporate owner or by the registered managing agent. The wilful making of a false certification of correction of a violation is subject to a monetary penalty.
certified statement: a statement which has been sworn to before a Notary Public or Commissioner of Deeds as a true statement
change of venue: the removal of a suit begun in one county to another county for trial, though the term may also apply to the removal of a suit from one court to another court of the same county
charge to jury: in trial practice, an address delivered by the court to the jury at the close of the case instructing the jury as to what principles of law they are to apply in reaching a decision
chattel: article of personal property
civil contempt: a failure to comply with a court order. Civil contempt is committed when a person violates an order of the court which specifically requires that the person do or refrain from doing an act. Punishment for civil contempt may be a fine or imprisonment, and the goal of the punishment is to have the person comply with the original order of the court.
Clerk’s Return On Appeal: a form filled out by the Civil Court Appeals Clerk certifying that the record on appeal is complete and ready to be transmitted to the Appellate Term
complaint: a paper filed in court and delivered to the party(ies) being sued, stating the plaintiff's claims against the defendant
compliance hearing: in an HP case, a hearing to determine whether repairs or other conditions were corrected as required by a court order. If noncompliance is found, the judge may impose civil penalties payable to the City of New York or issue further orders.
conspicuous place delivery: when the person serving the notice of eviction is unsuccessful on the first try to serve the papers by personal delivery or by substituted delivery, then he or she must make a second attempt during a different time period. After two unsuccessful attempts have been made to serve the respondent at home either by personal delivery or by substituted delivery, the server of the notice of eviction may then use conspicuous place delivery, also known as “nail and mail”.
constructive eviction: this occurs when the landlord's wrongful acts keep the tenant from the use of an apartment. In a constructive eviction a tenant, though not physically barred from the apartment or room in question, is unable to use the whole apartment or room for the purpose intended.
costs: the statutory sum awarded to the successful party when a judgment is entered
counterclaim: a legal claim by the defendant against the plaintiff
counterclaim (Housing Court): a legal claim by the respondent against the petitioner
court record: a documentary account of what happened in the action or proceeding, which includes the court file, exhibits and transcripts
court reporter: a person who transcribes by shorthand or stenographically takes down testimony during court proceedings
CPLR: the abbreviation for the Civil Practice Law and Rules, which is the New York state statute that sets forth the rules of civil procedure governing how a lawsuit is conducted in the courts of this state
criminal contempt: an offense against the authority of the court based upon wilful disobedience of a lawful court order. Punishment may be imprisonment, a fine, or both
cross-appeal: an appeal by one who has received a notice of appeal from their opposing party
crossclaim: claim litigated by co-defendants or co-plaintiffs against each other and not against a party on the opposite side of the litigation
cross-examination: questioning by a party or his attorney of an adverse party or a witness called by an adverse party
decision: the determination reached by a court in any judicial proceeding, which is the basis of the judgment
default: a "default" occurs when a party fails to plead or otherwise defend within the time allowed, or fails to appear at a court appearance
default (Housing Court): a party’s failure to timely answer and/or appear. In Housing Court a default against a tenant can result in eviction.
default judgment: a judgment against a defendant as a result of his/her failure to appear or submit papers at an appointed time during a legal proceeding
defendant: the one being sued. This party is called the "respondent" in a summary proceeding
defenses, legal or equitable: a stated reason why the petitioner has no valid case against the respondent
deliberation: the process by which a panel of jurors comes to a decision on a verdict
de novo: from the beginning, a new trial
deposition: sworn testimony of a witness
DHCR: New York State Division of Housing and Community Renewal, a New York State administrative agency which regulates residential housing subject to rent stabilization and rent control. For more information, go to the DHCR website.
direct examination: the first interrogation of a witness by the party on whose behalf the witness is called
directed verdict: an instruction by the judge to the jury to return a specific verdict
disbursements: out of pocket expenses awarded to the winner in a judgment
discontinuance with prejudice: to voluntarily put an end to a claim or proceeding, which prevents renewal of the same claim or cause of action
discontinuance without prejudice: to voluntarily put an end to a claim or proceeding, which does not prevent renewal of the same claim or cause of action
discovery: the efforts of a party to a lawsuit to get information about the other party's contentions before trial. The range of information which each party must exchange in discovery is broad, because all parties should go to trial with as much information and knowledge about the lawsuit as possible. During discovery a party may: (1) demand that the other party produce documents or other physical evidence, (2) request written interrogatories, which are questions and answers written under oath, and (3) take depositions, which involve an in-person session at which one party has the opportunity to ask oral questions of the other party or his or her witnesses.
dismissal: termination of a proceeding for a procedurally prescribed reason
dismissal with prejudice: action dismissed on the merits which prevents renewal of the same claim or cause of action
dismissal without prejudice: action dismissed, not on the merits, which may be re-instituted
disposition: the result of a judicial proceeding by withdrawal, settlement, order, judgment or sentence
economic infeasibility: a defense by an owner to an HP action that the conditions cannot be remedied because the cost of removing the violations and restoring the premises is prohibitive
entry of judgment: in order to start enforcing a judgment, the judgment must be “entered.” Entry occurs after the clerk of the court signs and files the judgment.
eviction: removal of the tenant and his or her personal property from a residential or non-residential premises
eviction proceeding: any proceeding which could result in the eviction of a respondent, such as a holdover or nonpayment proceeding
evidence: a form of proof or probative matter legally presented at the trial of an issue by the acts of the parties and through witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or the jury
examination before trial: a formal interrogation of parties and witnesses before trial
execution: (1) the performance of all acts necessary to render a written instrument complete, such as signing, sealing, acknowledging, and delivering the instruments (2) supplementary proceedings to enforce a judgment, which, if monetary, involves a direction to the sheriff to take the necessary steps to collect the judgment
execution of the warrant of eviction: when a Marshal evicts the occupants of a premises listed on the warrant of eviction and puts the winning party in possession
exhibit: a paper, document or other article produced and exhibited to a court during a trial or hearing and, on being accepted, is marked for identification or admitted in evidence
ex parte: a proceeding, order, motion, application, request, submission etc., made by or granted for the benefit of one party only; done for, in behalf of, or on application of one party only
garnish/ garnishment: to attach (seize) a portion of the wages or other property of a debtor to repay the debt. The garnishing party notifies a third party, such as a bank or an employer, to retain something it has belonging to the defendant-debtor, to make disclosure to the court concerning it, and to dispose of it as the court shall direct.
general denial: a respondent’s refusal to admit the truth of the claims in the petition
guardian ad litem: a person appointed by the court to represent a minor or an adult, not able to handle his or her own affairs, during a legal proceeding. The person appointed does not need to be a lawyer. The guardian ad litem is the guardian just for the purpose of the particular lawsuit. The person acting as the guardian ad litem has the responsibility to pursue the lawsuit and to account for any money recovery.
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- H
holdover proceeding: a court case started by the landlord to recover possession of the premises
HP case: a case brought in the residential Housing Part of the Civil Court which seeks repairs and to enforce housing standards
I
income execution: the legal process of enforcing a judgment. To enforce the judgment, the judgment creditor may seek an order from the court to have the appropriate authority seize property of the judgment debtor in order to satisfy the judgment. In the case of an income execution, or a "garnishment," the court might order a portion of the judgment debtor's wages or other property held in an amount to satisfy the judgment. This might be done over time in increments.
index number: a number issued by the county clerk, which is used to identify a case - in civil court there is a charge of $45.00
indorse: in the Housing Court, to write the oral answer of a respondent upon the court copy of the petition
infant's compromise: a civil proceeding or motion for obtaining court approval of the settlement of an infant's claim
information subpoena: a legal document that requires a person, a corporation, some other business, or the judgment debtor him or herself to answer certain questions about where the judgment debtor’s assets can be found
inquest: a non-jury trial for the purpose of determining the amount of damages due on a claim, if a party has not appeared or defended against the claim, and after the merits of the claim have been proven
interpreter: a person sworn at a judicial proceeding to translate oral or written language
interrogatories: written questions propounded by one party and served on an adversary, who must provide written answers thereto under oath
issuance of the warrant of eviction: the issuance of a warrant of eviction cancels the agreement under which the person removed held the premises and annuls the landlord/tenant relationship. The court retains power to vacate the warrant for good cause shown prior to the execution of the warrant.
J
judgment: the final decision of the judge. It is a determination of the rights and obligations of the parties. In a given lawsuit, a judgment may direct a dismissal of the lawsuit, order payment of a money amount or a direct one or more of the parties to do an act.
judicial hearing officer (JHO): a person who formerly served as a judge or justice of a court of record of the Unified Court System
jurisdiction: the court's authority to hear and decide a case. It is based upon the geographical, subject matter and monetary limitations of a court. To hear and decide a case a court must have both "personal jurisdiction" and "subject matter" jurisdiction. Personal jurisdiction refers to the court's power over the parties involved in the lawsuit. Subject matter jurisdiction refers to the court's power over the type or category of the lawsuit.
jury demand: a request for a trial by jury by either party. There are specific procedures for making a jury demand, which include filing a written demand with the clerk and paying a fee. The procedural rules place time restrictions on when a jury demand must be made.
jury instructions: directions given by the judge to the jury
K
L
legal holidays: includes the following days each year: Martin Luther King Jr. Day, Lincoln’s birthday, Washington’s birthday, Memorial Day, Flag Day, Independence Day, Labor Day, Columbus Day, Election Day, Veteran’s Day, Thanksgiving Day and Christmas Day. If any holiday falls on a Sunday, other than Flag Day which is on a Sunday, the holiday is the next day.
legal advice: involves applying or interpreting the law to your individual problems and recommending the best way for you to handle your case. Only an attorney, who is not a court employee, can provide legal advice. Court staff can’t offer legal advice to anyone. The court's role is to be neutral, without favor to any party. Court employees may only provide legal and procedural information. Legal and procedural information involves providing general information and does not include telling you how to best deal with your legal issues.
legal possession: when the tenant is removed from the premises by the marshal, but the tenant’s property remains in the apartment under the care and control of the landlord. A landlord has possession of the premises when the marshal has secured the premises by changing the locks.
lessee: a person who has signed a lease to rent real property
levy: to take or seize property in execution of a judgment
liability:an obligation to do, to eventually do, or to refrain from doing something; money owed; or according to law one's responsibility for his/her conduct; or one's responsibility for causing an injury
lien: a claim on specific property for payment of a debt
litigant: party to a legal action
M
marshal: an officer of the United States, whose duty it is to execute the process of the courts of the United States. His duties are very similar to those of a sheriff.
marshal (Housing Court): a marshal of the City of New York is a public servant who is empowered to enforce judgments, including evictions
marshal’s notice: a notice from a Marshal informing the recipient that they will be evicted after a certain time period
mediation: a discussion led by an impartial third party to facilitate a settlement of the lawsuit. The results of mediation are not binding unless the parties have signed a settlement agreement.
minutes: notes of what happened in the courtroom
mistrial: a trial which has been terminated and declared void prior to the reaching of verdict due to extraordinary circumstance, serious prejudicial misconduct or hung jury - it does not result in a judgment for any party but merely indicates a failure of trial
mitigation: to make less severe
money judgment: a judgment for an amount of money
motion: a request to the court, usually in writing, for relief before the trial on the parties' claims, or for different or additional relief after the trial decision
motion to reargue or renew: an application which seeks to persuade a judge that the decision/order rendered is incorrect, because the judge has misapprehended the facts or the applicable law, or because new evidence has become available which would change the prior decision and there is a good reason why the evidence was not presented earlier
moving party: the party who is making an application to the court for relief
multiple dwelling: a building occupied as a residence of three or more families living independently of each other, or occupied by one or two families with five or more transient boarders
N
nonpayment proceeding: a court case started by the landlord to collect unpaid rent and to evict the tenant if the tenant cannot pay the rent that is owed
notarize: to have a notary public attest to the authenticity of a signature on a document by signing the document and affixing his/her own stamp
notary public: a person authorized by the State of New York to administer oaths, certify documents and attest to the authenticity of signatures
notice of appeal: a notice to the opposing party that an appeal of the court proceedings will be taken. The notice must be served and filed within 30 days of service of the order or judgment appealed from with written notice of entry.
notice of claim: a paper required to be sent to the city or a public authority when a person claims a city agency, official, or employee of a public authority caused the person damage. The notice of claim informs the city or public authority of the nature of the claim within a short time after it occurs. A notice of claim must be timely sent to the city or public authority prior to filing a lawsuit.
notice of entry: a notice with an affidavit of service stating that the attached copy of an entered order or judgment has been served by a party on another party
notice of eviction: the notice from a marshal which informs the respondent that the marshal will return to evict him/her
notice of motion: a notice informing the court and your opposition when and where your motion will be heard, which lists the relief requested, the grounds for that relief, and provides a list of the supporting papers upon which the motion is based
notice of petition: a petitioner's written notice delivered to the respondents of when the court will hear the attached petition
nunc pro tunc: (now for then) presently considered as if occurring at an earlier date; effective retroactively
O
order: an oral or written command or a direction from a judge
order to correct: an order signed by a judge directing the correction of one or more violations. The order may be entered on stipulation after inquest, or after trial, and may be the foundation for contempt proceedings and civil penalties.
order to show cause: a written direction by the court, usually prepared and presented to the court by a party, that the court is shortening the required advance notice of a motion to the other parties. Sometimes the order to show cause contains a direction to the parties that they stop some specific activity until the court hears the motion.
P
PAR: a Petition for Administrative Review of an order issued by the DHCR. It is an appeal of a DHCR order brought at the DHCR, where the petition alleges the errors and lists the issues upon which the order should be reviewed. For PAR filing deadlines, to find out when a stay is applicable after filing a PAR, and for other information visit the DHCR website.
party: person having a direct interest in a legal matter, transaction or proceeding
peremptory challenge: the challenge which may be used to reject a certain number of prospective jurors without assigning any reason
perfect appeal: to take all legal steps necessary to complete the process of appealing an order or judgment. These steps may include ordering and securing a transcript, drawing up a record, writing, serving, and filing a brief, getting the case onto the appellate court’s calendar for argument, and finally, arguing and submitting the case.
personal delivery: when the notice of eviction is given to the respondent by in-hand delivery
petition: in special or summary proceedings, a paper like a complaint filed in court and delivered to the respondents, stating what the petitioner requests from the court and the respondents
petitioner: in a special or summary proceeding, one who commences a formal written application, requesting some action or relief, addressed to a court for determination. Also known as a plaintiff in a civil action.
plaintiff: the one suing. This party is called the "petitioner" in a summary proceeding
pleadings: complaint or petition, answer, and reply
poor person's relief: when a party to a lawsuit cannot afford the costs of a lawsuit, the Court may permit that party to proceed without being required to pay for court costs
possession: the right to occupy a premises
possessory judgment: a judgment for possession of residential or non-residential property. Both a nonpayment judgment and a holdover judgment can result in eviction.
predicate notice: a notice, served upon a respondent prior to the commencement of a special proceeding, such as a Demand for Rent, Notice to Quit, Notice to Cure a Substantial Violation of the Lease, Notice of Termination or a Notice of Intent Not To Renew a Lease
proceeding: a type of lawsuit. In Housing Court a nonpayment proceeding seeks past-due rent; a holdover proceeding seeks possession of the premises.
proof of service: documentation filed in court as evidence that a person or entity in a lawsuit was properly served. This consists of an affidavit of service by the person who served the court papers, as well as any supporting documentation, such as receipts from the post office and/or the signature of a person receiving such papers.
pro se: a party who does not retain a lawyer and appears for him/herself in court
Q
R
record: a permanent written account of some act, court proceeding or transaction that is drawn up by a proper officer and designated to remain as permanent evidence of what has been done in a lawsuit
referee: a person to whom the court refers a pending case to take testimony, hear the parties, and report back to the court. A referee is an officer with judicial powers who serves as an arm of the court.
relevant: logically connected and tending to prove or disprove a matter at issue
rent control: Laws and regulations which govern the occupancy of certain housing accommodations, first instituted in New York City after World War II. It is administered by the DHCR.
rent stabilization: Laws and regulations which govern the occupancy of certain housing accommodations, first instituted in New York City in 1969. It is administered by the DHCR.
replevin: an action brought for the owner of items to recover possession of those items when those items were wrongfully taken or are being wrongfully kept
reply: a plaintiff's response to a defendant's answer when the answer contains a counterclaim
requisition: a request to obtain something, such as court records, subpoenaed documents or copies of trial tapes
respondent: one who formally answers the allegations stated in a petition which has been filed with the court. Also known as a defendant in a civil action.
restore/ reinstate to calendar: to reinstate the action to active inventory
S
seizure: the process by which a person authorized under the law to do so takes into custody the property, real property or personal property, of a person against whom a judgment has been issued or might be issued. The seized property may be held to guarantee a judgment or be sold to satisfy a judgment.
self-represented litigant: a party who does not retain a lawyer and appears for him/herself in court. Also known as a Pro Se litigant.
service of process: the delivery of copies of legal documents to the defendant or other person to whom the documents are directed. Legal documents which must be served include a summons, complaint, petition, order to show cause, subpoena, notice to quit the premises and certain other documents. The procedure for service of process is specifically set out in statutes.
settle the minutes: the process by which the transcript of the proceeding is finalized
sever: to remove from a lawsuit or a counterclaim, with the ability to institute at another time in another court
sheriff: the executive officer of local court in some areas. In other jurisdictions the sheriff is the chief law enforcement officer of a county.
standing: the right to make a legal claim, or to seek judicial enforcement of a duty or a right
statement in lieu of record on appeal: a statement prepared by parties to an appeal indicating the question for appellate review, and providing a limited record necessary only to decide the question.
stay: the postponement or halting of a proceeding, action, or the enforcement of an order or judgment
stipulation of settlement: a formal agreement between litigants and/or their attorneys resolving their dispute
subpoena: a court document used to compel a witness to testify at the hearing or to produce records
substituted delivery: when the notice of eviction is given to an individual who answers the apartment door, as long as he or she resides or is employed in the apartment and is of appropriate age and has appropriate judgment to receive the papers
sum certain: liquidated damages pursuant to contract, promissory note, law, etc.
summary judgment: a determination in an action on the grounds that there is no genuine issue of fact
summons: a plaintiff's written notice, in a specific form, delivered to the parties being sued, that they must answer the plaintiff's attached complaint within a specific time
T
testimony: an oral declaration made by a witness or party under oath
transcript: the written, word-for-word record of all legal proceedings, including testimony at trial, hearings or depositions. A copy of the transcript may be ordered from the court reporter and a fee must be paid for the transcript.
transcript of judgment: a transcript of judgment is a paper containing the essential information of the judgment, certified by the clerk in the county where the judgment is entered, which allows the judgment creditor to enforce a judgment against real property in other counties.
trial: the formal examination of a legal controversy in court so as to determine the issue
trial de novo: a new trial (see: 22NYCRR 28.12)
turnover proceeding: a hearing after a judgment has been issued, in which a creditor seeks to establish through evidence that the debtor (or a third party who is in possession of the debtor's property) is in possession of money or property that would satisfy, or partially satisfy, the judgment
U
unbundled legal services: a practice in which the lawyer and client agree that the lawyer will provide some, but not all, of the work involved in traditional full service representation. Simply put, the lawyers perform only the agreed upon tasks, rather than the whole “bundle,” and the clients perform the remaining tasks on their own.
undertaking: deposit of a sum of money or filing of a bond in court
use and occupancy: Payment by an occupant to the landlord for the right to use and occupy a premises. The occupant is not a tenant, or once may have been a tenant, but the landlord/tenant relationship has since been terminated.
V
vacate: to cancel or invalidate
venue: the place within the court's jurisdiction where a lawsuit will be decided. For example, venue in a Civil Court action may be placed in Manhattan, Queens, Staten Island, Bronx or Brooklyn.
verdict: the determination of a jury on the facts
verification: confirmation of the correctness, truth or authenticity of pleading, account or other paper by an affidavit or oath
violation: condition listed as a violation of the New York City Housing Maintenance Code. They are classified as follows: "A" nonhazardous violations, "B" hazardous violations, and "C" immediately hazardous violations.
voir dire: a questioning of prospective jurors by the attorneys, and, on application of any party, by the judge, to see if any of them should be disqualified or removed by challenge or examination
W
warrant of eviction: a document that authorizes an eviction after a possessory judgment has been awarded to the winning party. It describes the premises and directs the sheriff or marshal to remove all persons from that premises and put the winning party in possession.
waste: permanent harm to real property
witness: one who testifies to what he/she has seen, heard, or otherwise observed
X, Y, Z
